Why Bush judge backed mandate

Ever since the early days of the health-care reform law, its supporters have argued that there is a “conservative” argument to be made for the constitutionality of the law. And they think they need just one of the Supreme Court’s four conservatives, or swing vote Anthony Kennedy, to take it up.

Now, a conservative federal appeals judge has gift-wrapped that argument — and legal experts say his decision to uphold the constitutionality of the health care overhaul could make it easier for one of the conservative Supreme Court justices to do the same.

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The legal opinion came from Judge Jeffrey Sutton, a member of the three-judge panel for the 6th Circuit Court of Appeals that upheld the law Wednesday. Sutton, who was nominated to the federal bench by President George W. Bush, wrote a concurring opinion agreeing with a lower court that the law’s requirement that nearly all Americans buy insurance is constitutionally sound.

The case was brought by the conservative Thomas More Law Center, which plans to appeal the decision to the Supreme Court in about 30 days.

Sutton became the first Republican-appointed judge to uphold the law, known as the Patient Protection and Affordable Care Act. He’s also drawing attention because he’s a jurist cut from the same cloth as Chief Justice John Roberts: Both favor deferring to legal precedents and not making drastic moves unless absolutely necessary.

That similarity is leading some legal experts to see Sutton’s decision as foreshadowing for how Roberts might rule.

“Sutton’s outlook is all fours with Roberts,” says Frank Cross, a University of Texas law professor who has studied politics in the courts. “They’re exactly the same type of judge. … I think this is a cue as to how he would react.”

Simon Lazarus, public policy counsel of the National Senior Citizens Law Center and a strong proponent of the law’s constitutionality, believes Sutton’s argument could resonate with Roberts as well as with justices Samuel Alito and Anthony Kennedy. All have suggested at one point or another that they’d rather have significant political decisions come from the legislature, not from the courts.

Lazarus called Sutton’s opinion “a very deliberate and incredibly well-crafted memo to the conservative bloc on the Supreme Court.”

“Whether they go along with it or not is not clear,” he said. “But proponents of the ACA could never have anticipated such an effective argument.”

Sutton’s position is significant because, until this week, the judges who have ruled on the merits of the approximately 30 challenges to the law have done so along the partisan lines of the presidents who appointed them. In addition to being a Bush nominee, he also clerked for Justice Antonin Scalia.